Government
of India Represented by the Secretary Vs.
K.V. Swaminathan [1996] INSC 1410 (6 November 1996)

K. Ramaswamy,
G.B. Pattanaik

ACT:

HEAD NOTE:

O R D
E R

Leave
granted.

This
appeal by special leave arises from the judgment of the Madras High Court made
on 14.3.1995 in W.P. No. 15732/94. The respondent claimed the benefit as
freedom- fighter but the same remained pending for a long time.

Ultimately,
giving the benefit of doubt to the respondent, he was granted pension on
18.11.1989. Not feeling satisfied with the relief, the respondent filed writ
petition claiming the pension from date of his-application. In the impugned
order, the High Court has directed to pay the pension from the date of the
application. The controversy is no longer res integra. This Court had
considered the entire controversy in Union of India vs. M.R. Chelliah Thevar
[C.A. No. 7762/96) decided on April 30, 1996
and held thus :

"Heard
counsel for both sides. On behalf of the Union of India strong reliance was
placed on the decision of the Division Bench of this Court dated 24th April, 1995. On the other hand, learned counsel
for the respondent placed reliance on an earlier judgment of this Court in Mukund
Lal Bhandari & Ors. vs. Union of India
& Ors. 1993 Supp. (3) 2, as well as the decision in Amarnath dated 19th
October, 1994.

The
distinction, however, is that in the case relied on by the Union of India, the
respondents were granted the benefit under the policy not because it was a
clear case of the respondents being doubt was given and hence the pension was
restricted from the date of application. In the two cases relied on by the
respondents, there was no question of the benefit having been founded on a
establish that the petitioners were freedom fighters but on the liberal ground
of giving them the benefit of the order. We are, therefore, of the opinion that
there is a distinction between the decision relied on by the learned Additional
Solicitor general on decisions relied on by the respondent. In the instant
case, since the benefit of doubt was given and the status of freedom fighter
was recognised on that basis, the case would be covered by the first mentioned
decision dated 24th
April, 1995 (Union of
India vs. Ganesh Chandra Dolai & Ors.)" In view of the above settled
legal position, though the respondent was not entitled to the pension as a
freedom- fighter, he was given the relief on the basis of benefit of doubt.
Therefore, he is entitled to the pension only from the date of the order and
not from the date of the application. We are informed that pursuant to the
order of the High Court, the amount has been released. Under this circumstance,
the appellant is directed to deduct the paid amount proportionately from the
amount payable in every month, instead of asking him to refund the amount.